“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.
The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.
The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.
If the clause stands part of the Bill in its current form, it will help to enshrine an unnecessarily secretive culture that punishes those who seek to reveal wrongdoing, rather than encouraging a robustly honest working environment. Individuals who wish to make reports, even internally, of unlawful or otherwise inappropriate behaviour—we are talking about unlawful behaviour, not just inappropriate behaviour—will know that taking steps to do the right thing could expose them to a significant criminal sanction and a significant period of imprisonment. In a Bill that seeks to bring new levels of transparency to the UK’s surveillance regime, introducing such an offence without a defence of disclosure in the public interest is undemocratic and unacceptable.
A number of bodies have expressed concern about the lack of such a defence in the Bill. Public Concern at Work has highlighted that the channels through which intelligence services personnel may report misconduct are uncertain in the Bill, and it suggests that clarity is particularly important in that area in light of the limitations of the protections afforded by the Public Interest Disclosure Act 1998, which protects internal disclosure, disclosure to prescribed bodies and wider disclosures to bodies and organisations not prescribed, applying different safeguards in connection with each type of disclosure. There are exceptions to that, and the relevance to the Bill is that members of the intelligence services are completely excluded from the Public Interest Disclosure Act’s protection. The Act’s protection also does not extend to workers in other sectors where their disclosure would breach the Official Secrets Act 1989.
The defence would not be a licence for clypes, as we call them in Scotland—people who tell tales. It is a strongly worded defence, and the disclosure would have to be in the public interest. The defence is not just for people—we have all come across them—who want to cause problems or to rattle their employer’s cage; it would have to be disclosure in the public interest. The Joint Committee on the draft Bill recommended that it be amended to specify that any disclosure to the Investigatory Powers Commissioner for the purpose of soliciting advice on any matter, or for the purpose of supporting the duty to review, would be an authorised disclosure and not subject to any criminal penalty. The Joint Committee also recommended that a provision should be inserted in the Bill to allow for direct contact to be made between judicial commissioners and both communication service providers and the security and intelligence agencies.
Clauses 49 to 51 authorise the disclosure of information relating to certain matters, but it is unclear whether persons disclosing other information will be subject to the offence. It is far from clear where there are similar statements for whistleblowers. My purpose in moving the amendment is to create a safe route for whistleblowers where their disclosure is in the public interest.